The Supreme Court, ISIS, and the War Powers

In the latest issue of the Atlantic, Yale Professor Bruce Ackerman has a provocative essay titled “Can the Supreme Court Force Congress to Own the War on ISIS?” Not surprisingly, his answer is yes. Although the Supreme Court has historically resisted intervening in disputes over the war powers, Ackerman flags two circuit court decisions toward the end of the Vietnam War (Berk v. Lairdand Massachusetts v. Laird) recognizing that servicemembers facing imminent deployment to a combat zone had standing to challenge the legality of military force–even though those decisions both rejected the servicemembers’ claims on the merits. Assuming similar plaintiffs seek to challenge a future deployment to fight ISIS, Ackerman argues, the federal courts (and, eventually, the Supreme Court) will have the ability to consider the claim that the use of force against ISIS, without express statutory authorization, transcends the limits of the War Powers Resolution. As I explain below the fold, not only could I not disagree more emphatically, but I fear that Professor Ackerman’s argument is a very dangerous one, indeed.

At the top, let me stress that I am deeply sympathetic to Ackerman’s views on (1) standing; (2) the more general extent to which courts should be more aggressive in resolving interbranch disputes in the national security sphere; and (3) the complete undesirability of the legal status quo vis-a-vis ISIS. All that said, I just don’t see the argument here. The Obama Administration’s position is not that the continuing use of force against ISIS doesn’t amount to “hostilities” sufficient to trigger the War Powers Resolution; rather, its claim is that the 2001 Authorization for the Use of Military Force (AUMF) provides sufficient authorization. Whatever the merits of that view, I don’t think it’s so obviously wrong as to be the kind of war powers dispute that the courts would be in any kind of hurry to resolve. Indeed, the very Vietnam-era cases upon which Ackerman relies to support his standing analysis prove the point: In both cases, because of the Gulf of Tonkin Resolution and subsequent appropriations measures, the courts concluded that it was insufficiently clear that the President was usurping Congress’s constitutional prerogative. As the First Circuit concluded in Massachusetts,

in a situation of prolonged but undeclared hostilities, where the executive continues to act not only in the absence of any conflicting Congressional claim of authority but with steady Congressional support, the Constitution has not been breached. The war in Vietnam is a product of the jointly supportive actions of the two branches to whom the congeries of the war powers have been committed. Because the branches are not in opposition, there is no necessity of determining boundaries. Should either branch be opposed to the continuance of hostilities, however, and present the issue in clear terms, a court might well take a different view. This question we do not face. Nor does the prospect that such a question might be posed indicate a different answer in the present case.

It seems to me that, based upon the current state of affairs, contemporary courts–even if a plaintiff had standing–would come to the exact same conclusion here. Until and unless Congress formally disavows the continuing use of force against ISIS either substantively or by defunding certain military operations (I wouldn’t hold my breath), I just don’t see how or why courts would come out the other way.

To be sure, Ackerman anticipates this likelihood, concluding that “even if the Roberts Court upheld the administration’s view, it would put future presidents on notice that the justices will seriously scrutinize further efforts to transform the resolutions of 2001 and 2003 into open-ended grants for new military adventures.” Respectfully, I disagree. Even assuming (1) the courts hold that there is standing; (2) the courts reach the merits; and (3) the Supreme Court ultimately takes the case and rules for the Obama Administration, that would only cement, and not destabilize, the precise legal interpretation that Ackerman finds so alarming. Indeed, for someone who is as worried as Ackerman about the drift of the war powers, a Supreme Court decision endorsing the Obama Administration’s approach seems like a far greater blow than the current state of affairs–much as Justice Jackson famously warned in his Korematsu dissent.

What’s more, by suggesting that the courts will get involved if the status quo continues unaltered, Ackerman’s essay only further lets Congress off the hook for its continuing acquiescence in the dilution of its constitutional prerogative. Ultimately, if Congress really believes that the President is abusing his war powers authority (and I think that’s a big “if” in this case), it’s up to Congress, and nobody else, to seek to rein him in.